McConnell, RFRA, and baselines

[Rick Hills]

        Eugene Volokh reports that an Illinois appellate court has upheld a ban on
landlord's discrimination based on marital status as consistent with RFRA
on the ground that the state has a compelling interest in protecting the
interests of third parties -- namely, the interest of unmarried couples in
securing access to housing.  Specifically, the court stated

"[W]hat distinguishes this situation from other free
exercise cases is the direct impact of Jasniowski's religious
objection on the interests of third parties.  See generally Michael
W. McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, 103 Harv. L.Rev. 1409, 1464 (1990); Michael W.
McConnell, Free Exercise Revisionism and the Smith Decision, 57 U.
Chi. L.Rev. 1109, 1145-46 (1990).  Specifically at issue is the
effect of Jasniowski's free exercise on Benson Rushing's `full and
equal' opportunity for housing in the City of Chicago."

Two sets of questions, one for Professor McConnell and one for the general
audience:

        First, does Professor McConnell feel that the interpretation given to his
work by the court is something of a travesty?  (I am assuming that the
reasoning about the effect on third parties will strike Professor McConnell
as erroneous).

        Second, does the Court's invocation of "harm" imposed on third parties
just highlight the baseline difficulties raised by notions like "harm"?
Can such notions be sensibly employed to define principles of religious
liberty without a much deeper account of the appropriate baseline?  And,
finally, should the courts get into the business of defining the proper
baseline, or is this (after the New DEal) a legislative matter?

        In short, does the Illinois Supreme Court's decision just highlight the
bankruptcy of notions like "harm" for defining important constitutional
rights?

        Rick Hills
        University of Michigan Law School








At 01:12 PM 4/2/97 PST, you wrote:
>    Jasniowski v. Rushing, 1997 WL 144866 (Ill. App. Mar. 31), holds,
>2-1, that a ban on marital status discrimination in housing passes
>strict scrutiny under RFRA:
>
>    1)  The ban does impose a substantial burden, but
>
>    2)  "[W]hat distinguishes this situation from other free
>exercise cases is the direct impact of Jasniowski's religious
>objection on the interests of third parties.  See generally Michael
>W. McConnell, The Origins and Historical Understanding of Free
>Exercise of Religion, 103 Harv. L.Rev. 1409, 1464 (1990); Michael W.
>McConnell, Free Exercise Revisionism and the Smith Decision, 57 U.
>Chi. L.Rev. 1109, 1145-46 (1990).  Specifically at issue is the
>effect of Jasniowski's free exercise on Benson Rushing's `full and
>equal' opportunity for housing in the City of Chicago.
>
>    "Adding the interests of the prospective tenant Rushing changes
>the equation.  The balance thus becomes Jasniowski's free exercise as
>weighed against the City of Chicago's general interest in preventing
>housing discrimination and Rushing's individual interest in access to
>housing.  While the weight of the interests is admittedly close, the
>impact of Jasniowski's religious objection on third parties tips the
>balance in favor of the government."
>
>
>                               -- Eugene Volokh, UCLA Law
>
>